November 15, 2018, Trial News
Florida Supreme Court rejects Daubert
A 2013 amendment to Florida’s evidence code making Daubert the standard for scientific testimony is unconstitutional, the Supreme Court of Florida has ruled. The court determined that by enacting the statute—contrary to years of case law affirming the Frye standard—the legislature infringed on the court’s rulemaking authority as the changes were procedural not substantive.
A 2013 amendment to Florida’s evidence code making Daubert the standard for scientific testimony is unconstitutional, the Supreme Court of Florida has ruled. The court determined that by enacting the statute—contrary to years of case law affirming the Frye standard—the legislature infringed on the court’s rulemaking authority as the changes were procedural not substantive. (DeLisle v. Crane Co., 2018 WL 5075302 (Fla. Oct. 15, 2018).)
The court considered what standard applied for admission of expert scientific testimony in an appeal from Richard DeLisle, whose verdict against a tobacco company and a manufacturer of gaskets was overturned by a state appellate court. DeLisle brought claims of negligence, strict liability, failure to warn, and design defect against the defendants, alleging that exposure to asbestos from their products—including Cranite sheet gaskets that contained chrysolite asbestos fibers and cigarette filters that also contained asbestos fibers—caused him to develop mesothelioma. At trial, DeLisle introduced several causation experts, who all agreed that the cigarette filters were a causative factor in his mesothelioma but could not agree about what other defendants’ products substantially contributed.
The defendants moved to exclude the experts’ testimony under Daubert—which focuses on the methodology of an opinion for its reliability—and following hearings, the trial court allowed the testimony. The jury awarded $8 million, apportioning fault among five defendants. The defendants appealed, and the appellate court determined that under the Daubert standard, the trial court failed to exercise its gatekeeping function for three of the causation experts. As a result, the court reversed the verdict, and the plaintiff sought review from the state high court.
The court considered whether the legislature’s adoption of Daubert into the evidence code was an unconstitutional infringement on its rulemaking power. The court had long followed the expert testimony standard from Frye v. United States (293 F. 1013 (D.C. Cir. 1923)), which states that expert testimony should rely on “well-recognized scientific principle or discovery.” In previous case law, the state high court had rejected arguments that the state legislature’s adoption of an evidence code superseded Frye and replaced it with a balancing test. Even after the U.S. Supreme Court adopted Daubert, the Florida Supreme Court continued to use Frye.
When the amendment passed in 2013, the court refused to adopt the amended code to the extent that it was procedural because of concerns that it was an unconstitutional infringement on the court’s authority to make procedural rules. (In Re Amendments to the Florida Evidence Code, 2017 WL 633770 (Fla. Feb. 16, 2017).) It stated at the time that it would have to wait for a “case or controversy” before ruling on the amendment’s merits.
When such a question arose in DeLisle, the court concluded that the amendment was purely procedural and thus unconstitutional. A law that “creates, defines, or regulates a right” is considered substantive, the court said, and within the legislature’s authority to enact. A law that is procedural, however, is “the form, manner, or means by which substantive law is implemented” and is part of the court’s authority to determine how litigation is handled. The court acknowledged that a law can be both procedural and substantive, but in this instance, it “is one that solely regulates the action of litigants in court proceedings.”
But the finding that the amendment was procedural did not necessarily mean it was unconstitutional. As the second part of its analysis, the court considered whether the amendment conflicted with any of its rules. The court determined that a procedural rule can be made through case law, and the case law is clear that Frye is the expert testimony standard adopted through the court’s precedent. In reaffirming Frye, the court explained that this standard depends on the scientific community to determine the reliability of evidence, while Daubert depends on “the scientific savvy of trial judges.” The court noted that Frye “applies only when experts render an opinion that is based upon new or novel scientific techniques” and that because of this, it does not affect the majority of cases.
Turning to DeLisle’s case, the court concluded that the expert testimony was properly admitted because “medical causation testimony is not new or novel and is not subject to Frye analysis”—including mesothelioma causation. The court said that it was for a jury to decide the credibility of both parties’ experts, and it remanded to the lower court to reinstate the original verdict.
In its amicus brief in support of the plaintiff, the Florida Justice Association explained, “The Frye standard repeatedly reaffirmed by this court effectively screens out unreliable expert testimony. The Daubert amendment has not created a more effective screen; rather, it has served to do nothing more than increase procedural hurdles, delays, and costs in the justice system.”